End User License Agreement

IMPORTANT – READ CAREFULLY:

This End-User License Agreement (the “Agreement”) is a legal agreement between you (either an individual or a single entity) and Hey Healthcare, Inc., a Delaware corporation (“Hey Healthcare”) for evaluation and use of Hey Healthcare’s application (including all ancillary applications provided) and any associated documentation provided with the application (collectively, the “Application”). By downloading, installing, or using the Application: (1) you represent that you understand the terms of this Agreement and you have the capacity and authority to bind your employer to this Agreement, and (2) you accept the terms of this Agreement and you consent to be bound by this Agreement on behalf of your employer (hereinafter referred to as “you”). If you do not agree to be bound by these terms and conditions, do not download, install, or use of the Application.

1. Grant of License

Hey Healthcare grants you a revocable, non-exclusive, non-transferable, limited license to download, install and use the Application strictly in accordance with the terms of this Agreement. You (a) may install and operate copies of certain Hey Healthcare-supplied software, if any, that are identified in the Services and Charges Schedule as required to access or receive the Application, (b) may access the Application that Hey Healthcare will make available, and (c) may be provided with copies of the Application for demonstration purposes.

You are permitted to load the Application onto a mobile device under your control. You are responsible for ensuring your device meets the minimum requirements of the Application.

2. Restrictions

It is your responsibility to ensure compliance with the terms of this Agreement. Except as may otherwise expressly be provided herein and as otherwise expressly permitted by law, you shall not, directly or indirectly: 

(a) Use the Application in a manner that infringes any third party’s copyrights or any other rights; 

(b) Make any translation, adaptation, arrangement, modification, derivative work or other alteration of the Application;

(c) Distribute, sell, give away, hire or lease the Application, or another product wholly or partially derived from the Application, or offer to do any of the foregoing; 

(d) Assign, sell, lease, rent, time-share, or otherwise make all or any part of the Application available for installation or use by any third party, as a service bureau, application service provider or otherwise, without the prior written consent of Hey Healthcare; 

(e) Decipher, decompile, disassemble or reverse engineer the Application, in whole or in part. To the extent you are expressly permitted by law to reverse engineer the Application, you agree to use such findings only as expressly permitted by law, and to otherwise hold such findings in strict confidence. For information regarding interoperability, contact Hey Healthcare. 

3. Transfer and Assignment

This Agreement is personal and may not be assigned or assumed (including by operation of law) without Hey Healthcare's prior written consent, and any attempt to do so without such consent is void.

4. Term and Termination of License

(a) The term of this Agreement, and the license granted hereunder, shall commence upon you assenting to the terms and conditions of this Agreement by clicking “I Agree” and shall continue indefinitely unless terminated in accordance with this Agreement.

 (c) Without prejudice to any other rights, Hey Healthcare may immediately terminate this Agreement and the license granted hereunder upon written notice to you if you fail to comply with the terms and conditions of this Agreement.

(d) Upon termination of the license for any reason, you must immediately destroy and stop using all copies of the Application (including purging all storage media on which such Application is installed or otherwise stored) and all of its component parts.

(e) Upon termination of this Agreement, the provisions of Section 1.3, 3, 5, 6, 10, 12, 16, and 17 shall survive.

This Agreement will also terminate immediately if you fail to comply with any term of this Agreement. Upon such termination, the license granted by this Agreement will immediately terminate and you agree to stop all access and use of the Application. The provisions that by their nature continue and survive will survive any termination of this Agreement.

5. Support

Information regarding support offerings made generally available by Hey Healthcare is available from Hey Healthcare upon request. The provision of support services by Hey Healthcare, if any, shall be subject to the terms of this Agreement. 

6. Title

All copyrights, trademarks and all other intellectual property rights in and to the Application are and shall remain the sole and exclusive property of Hey Healthcare. Nothing in this Agreement shall confer any rights in any trade name, business name or trademark of Hey Healthcare to you. All modifications and improvements made to the Application and derivative works of the Application created by Hey Healthcare based in whole or in part upon the suggestions or feedback provided by you shall remain the sole and exclusive property of Hey Healthcare. You agree not to remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Application. You agree to keep confidential and use your best efforts to prevent and protect the contents and output of the Application from unauthorized disclosure.

7. Content

Title, ownership rights, and intellectual property rights in and to the content accessed through the Application is the property of Hey Healthcare and may be protected by applicable copyright or other law. This Agreement gives you no rights to any such content.

8. Limited Warranty; Disclaimer

Hey Healthcare warrants to you that the Application shall be in operable condition as described in the Application. Hey Healthcare does not warrant that the Application will function without errors or interruptions. In the event that the Application fails to conform to this warranty, Hey Healthcare’s sole liability and your exclusive remedy shall be, at Hey Healthcare’s option, either (a) return of the price paid by you (if applicable), or (b) repair or replacement of the Application. This limited warranty does not apply to versions of the Application identified as “beta,” “pre-release,” “test,” “AS-IS,” or the like, or to any support or other services performed by Hey Healthcare, all of which are supplied on an “AS-IS” basis without any warranty of any kind. This limited warranty is void if failure of the Application resulted from your negligence, abuse, accident, or improper or unauthorized use of the Application. 

THE FOREGOING LIMITED WARRANTY IS IN LIEU OF AND HEY HEALTHCARE DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE), INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITIONS OF QUALITY, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. THE FOREGOING LIMITED WARRANTY SHALL FURTHER NOT BE ENLARGED OR OTHERWISE AFFECTED BY HEY HEALTHCARE’S RENDERING OF ANY SUPPORT SERVICES OR TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE APPLIACTION OR YOUR USE THEREOF. HEY HEALTHCARE SHALL NOT BE HELD RESPONSIBLE FOR THE PERFORMANCE OF OR OUTPUT OBTAINED FROM THE APPLICATION NOR FOR ANY LIABILITY TO ANY PARTY ARISING OUT OF USE OF THE APPLICATION.

9. Limitation of Liability

IN NO EVENT SHALL HEY HEALTHCARE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF HEY HEALTHCARE TO YOU UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THAT PAID BY YOU TO HEY HEALTHCARE IN CONNECTION WITH YOUR USE OF THE APPLICATION WITHIN THE PREVIOUS SIX-MONTH PERIOD. 

10. Export

You agree that the Application will not be shipped, transferred, exported, or re-exported into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable export laws, restriction or regulations (collectively, the “Export Laws”). If the Application, or any component thereof, is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation and that you are not otherwise prohibited under the Export Laws from receiving the Application. All rights to use the Application under this Agreement are granted on the condition that such rights are forfeited if your representations and warranties in this section are not true. 

11. U.S. Government Restricted Rights

If you are a government agency, you acknowledge that the Application was developed at private expense and that the computer software component is provided to you subject to RESTRICTED RIGHTS. Notwithstanding any other lease or license agreement that may pertain to, or accompany the delivery of, this restricted computer software, the rights of the government regarding its use, duplication, reproduction or disclosure by the Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the rights in Technical Data and Computer Application clause at DFARS 252.227-7013 (48 C.F.R. § 252.227-7013), and subparagraph (c)(1) and (2) of the Commercial Computer Application Restricted Rights clause at FAR 52.227-19. Contractor/manufacturer is Hey Healthcare Application Technologies.

12. Compliance with Agreement

You agree that within fifteen (15) days of a request from Hey Healthcare or Hey Healthcare’s authorized representative you will fully document and certify that your use of the Application at the time of the request is in conformity the terms of this Agreement and you agree to permit Hey Healthcare or its authorized representative to verify the accuracy of your certification. 

13. Arbitration; Jurisdiction

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This Agreement is governed by the laws of the State of California. You hereby consent to the jurisdiction of the courts located within San Francisco, California. 

14. Customer Identification

You grant Hey Healthcare the right to use publicly your name and logo to appropriately identify you as a Hey Healthcare customer and licensee of the Application. In addition, the Application will collect, store, and utilize data in accordance with Hey Healthcare’s Privacy Policy, which may be amended from time to time.

15. Termination.

Either party may terminate this Agreement without cause upon thirty (30) days written notice to the other party. Hey Healthcare may terminate this Agreement upon the occurrence of any of the following events: (A) immediately upon your death, incapacity, or dissolution, (B) immediately upon the commission of an act of fraud or embezzlement upon Hey Healthcare by you, (C) immediately if you are found by a court of competent jurisdiction to have committee, or pleads guilty to or nolo contender to a charge that you committed a felony or misdemeanor; or (D) your refusal or failure to comply with any of your obligations under this Agreement that are not cured within fifteen (15) days after a demand is made by Hey Healthcare.

16. Confidential Information; Covenant Not to Disclose.

You covenant and undertake that you will not at any time during or after the termination of this Agreement reveal, divulge, or make known to any person, firm, corporation, or other business organization (other than Hey Healthcare or its affiliates), or use for any purpose other than the sole benefit of Hey Healthcare any Confidential Information (as hereinafter defined) of any kind used by Hey Healthcare during the term and made known (whether or not with the knowledge and permission of Hey Healthcare, whether or not developed, devised, or otherwise created in whole or in part by your efforts, and whether or not a matter of public knowledge unless as a result of authorized disclosure) to you.  You further covenant and agree that you shall retain such Confidential Information in trust for the sole benefit of Hey Healthcare, its successors and assigns.  The terms of this section shall survive the termination or expiration of this Agreement.

For purposes of this Agreement, “Confidential Information” shall mean  confidential or proprietary information of Hey Healthcare, including, without limitation, technical and engineering information, know-how, trade secrets, manufacturing processes, development processes, financial information, marketing and distribution information, referral source names and/or lists, patient names and/or lists, vendor names or lists business information, compilations, specifications, strategies, projections, processes, techniques, formulae, models and patent disclosures, product information, product economics, notes, memoranda, drawings, specifications, programs, data, patient information, medical records, patient identifiers, policies, procedures, or other materials of any nature relating to any matter within the scope of the business or any anticipated business of Hey Healthcare or concerning any of its dealings or affairs.

17. Compliance with Applicable Laws.

You hereby represent, warrant and covenant that you and your agent(s) are aware that it is illegal to knowingly and willfully offer, pay, solicit or receive any remuneration in return for or to induce referrals or other business that is payable, in whole or in part, by a federal health care program, and that such conduct may subject the parties involved to civil and/or criminal penalties.  You and your agent(s) agree that they shall abide by all laws, rules and regulations promulgated by any governmental authority having jurisdiction over you and Hey Healthcare.  You and your agent(s) further represent, warrant and covenant to comply with all applicable laws and regulations regarding the use and disclosure of patient information, including without limitation, the requirements of the Federal Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009, and its related regulations (“HIPAA”).  In addition, you hereby agree to enter into and comply with the terms and conditions of the Business Associate Agreement hereby incorporated into this Agreement. The terms of this Section shall survive the expiration or termination of this Agreement.

18. General

This Agreement shall inure to the benefit of Hey Healthcare and its successors or assigns. Waiver of breach of any provision of this Agreement shall not be deemed a waiver of that provision or any other provision. If any provision of this Agreement is held to be unenforceable, it will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force. Hey Healthcare reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material Hey Healthcare will provide at least thirty (30) days' notice prior to any new terms taking effect. What constitutes a material change will be determined at Hey Healthcare’s sole discretion. The parties disclaim the application of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) or any state’s implementation of UCITA. 

This Agreement is not intended, and shall not be construed, to create an employment relationship, partnership or other such association as between the parties.  Each party is an independent contractor of the other.  Neither party to this Agreement shall be or become liable or bound by any representation, act or omission whatsoever of the other party made contrary to the provisions of this Agreement. The captions in this Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation hereof.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THIS AGREEMENT, TOGETHER WITH ONE OR MORE LICENSE ORDER CONFIRMATIONS FOR THE APPLICATION, IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND HEY HEALTHCARE WHICH SUPERSEDES ANY PROPOSAL, OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN YOU AND HEY HEALTHCARE RELATING TO THE SUBJECT MATTER HEREOF.

If you have any questions about this Agreement, or if you wish to change the address to which notices may be sent to you for purposes of this Agreement, you may write to Hey Healthcare at the following address: 

Hey Healthcare, Inc., 2 Elizabeth Street, San Francisco, CA 94110

19. Electronic Signature

By entering your information and accepting the terms below, you are agreeing to electronically access, receive, review, sign, and authenticate certain documents, forms, and/or letters ("Materials") covered by the Federal Electronic Signatures in Global and National Commerce Act ("E-SIGN"), various state electronic transactions acts ("ETAs"), and/or separate state laws, including but not limited to the following Materials:

1.        This End User License Agreement;

2.        Hey Healthcare’s Business Associate Agreement;

3.        Hey Healthcare’s Privacy Policy and Website Terms of Use; and/or

4.         Any other related documents.

By entering your information and accepting the terms below, you are agreeing that your electronic signature is the equivalent of your handwritten (or wet) signature, with all the same legal and binding effect. In certain cases, you may be asked to click buttons labeled “I Agree,” “I Acknowledge,” or using similar words, or to otherwise electronically acknowledge, accept, review, sign and/or authenticate Materials. This Electronic Consent applies to those instances as well. You also understand that, in its sole discretion, Hey Healthcare may mail, hand-deliver, communicate, or otherwise send you hard-copy Materials.

You may withdraw your consent to receive, review, access, sign, and authenticate any additional electronic Materials at any time by canceling this Electronic Consent. You may cancel this Electronic Consent and withdraw your consent now by not completing this Electronic Consent form and exiting the system. You may cancel this Electronic Consent and withdraw your consent in the future by sending a written cancellation request to Hey Healthcare, 2 Elizabeth Street, San Francisco, CA 94110, or by emailing contact@heyhealthcare.com. Any withdrawal of your consent will be effective after a reasonable period of time in order for Hey Healthcare to process your withdrawal. Withdrawal of your consent will have no legal effect on the validity, effectiveness, or enforceability of (a) any authorization consent or e-signature provided by you prior to the effective date of your withdrawal or (b) any document, form, letter, etc. that was provided or made available to you in electronic format prior to the effective date of your withdrawal. Withdrawal of your consent (i.e., canceling this Electronic Consent) also will not relieve you from the obligation to complete all required Materials. Withdrawal/canceling will require you to receive, review, access, sign, and authenticate these Materials in hard copy instead of electronically. Receiving, reviewing, accessing, signing, and authenticating certain Materials in either electronic or hard copy is a condition of initial and/or continued employment.

To access these electronic Materials, you must have (a) a personal computer and an operating system capable of receiving, accessing, displaying, and either printing or storing information, (b) an Internet connection, and (c) Internet Browser Software.

By entering my information and accepting the terms below, you are:

1.        Confirming that you can access this Electronic Consent.

2.        Confirming that you have an email address and that the computer you intend to use to access documents electronically has the hardware and software requirements described in this Consent, to access and to retain these electronic Materials.

3.        Agreeing to electronically access, receive, review, sign, and authenticate Materials in place of hard copy/paper documents and handwritten signatures.

4.        Confirming that you understand how to cancel this Electronic Consent, should I ever want to do so.

5.        Agreeing that you have read, understand, and agree to all statements, agreements, and acknowledgements in this Electronic Consent.

Last Updated: December 20, 2018